Part I The Origin and Legal Source of the Persistent Objector Rule, 1 The History and Emergence of the Persistent Objector Rule

Subject(s):

1815 to World War I — World War I to World War II — Choice of law — Conflict of laws — Customary international law — General principles of international law — Sources of international law

This is the first of two chapters which examine the emergence and legal basis of the persistent objector rule. This chapter looks at its origin and validity. It tackles an important issue: whether the rule exists at all as a norm of public international law. Most scholars regard the rule as an aspect of the system, but an important number also have argued that it is an academic fiction with no basis in law. They say that it was simply designed by scholars to patch over a sketchy positivist understanding of international legal obligation based on consent. However, supporters of the rule have generally not provided much in the way of evidence for its existence. The chapter concludes that while the ‘roots’ of the persistent objector rule can be traced back well before 1945, there is insufficient evidence to assert that the rule in its modern incarnation had emerged prior to the Second World War.